Law & Principles

McGirt complications: Judge considers recusal

October 2, 2020

Ray Carter

It was widely understood the U.S. Supreme Court’s recent decision in McGirt v. Oklahoma, which found that the federal government never disestablished the Muscogee (Creek) Nation’s reservation, opened a Pandora’s box that would lead to a wide range of state-tribal conflicts over issues that include criminal justice, taxation, and regulation.

The ripple effects continued to be felt this week as a McGirt-based criminal appeal highlighted another challenge: The judges who have to resolve such legal disputes often have ties—and even receive benefits from—tribal governments, creating conflict-of-interest appearances.

Shaun Michael Bosse is a non-Indian on death row who was convicted in state court of murdering a Chickasaw family—a mother and her two children—in 2010. Bosse stabbed the mother and her eight-year-old son multiple times, and the body of the woman’s six-year old daughter was found in a closet with a chair wedged to trap the girl in the burning home.

Bosse is challenging his conviction, arguing that the state of Oklahoma lacked the authority to prosecute him under the reasoning of the McGirt decision because his crimes took place within the boundaries of the original Chickasaw Reservation and the murder victims were Chickasaw. Under the McGirt decision, it is argued such cases may be tried only in federal courts, not Oklahoma state courts.

An amicus brief filed in Bosse’s appeal by the Chickasaw Nation declares that “the crimes of which Defendant was convicted were committed at a location within the boundaries of the Chickasaw Reservation, and thus in Indian country.”

The brief declares that the Chickasaw Nation “submits that the Chickasaw Reservation continues to exist within the Treaty Territory established by the 1830 Treaty, that its boundaries continue to be defined by the 1855 Treaty, and that all land within the Chickasaw Reservation constitutes Indian country under federal law.”

In a Sept. 23 email included in the public record of the Bosse appeal, District Judge Leah Edwards wrote, “I was just presented with an Amicus Brief filed by the Chickasaw Nation of Oklahoma in the above-referenced matter. I have previously disclosed my family’s membership in the Chickasaw Nation and that, as a result, my family and I receive certain benefits.”

Although the deadline for requesting the judge’s recusal had passed, Edwards wrote that “based upon this new information, I would permit a late recusal request.”

Oklahoma law requires a judge to recuse himself or herself from a case “in any proceeding in which the judge’s impartiality might reasonably be questioned.” A “comment” section for that law provides additional clarification, saying a judge is “disqualified whenever the judge’s impartiality might reasonably be questioned,” regardless of whether the reason such questions can be raised are specifically addressed in any “specific provisions” of the law.

The comment section also declares that a judge “should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.”

An email of response was sent the same day by Assistant Attorney General Caroline Hunt, stating, “The State (The DA’s Office and the AG’s Office) will not be requesting your disqualification.” An email sent soon after by Assistant Federal Public Defender Michael W. Lieberman stated, “Oh behalf of Mr. Bosse, we also will not be seeking a recusal.”

Cleveland County District Attorney Greg Mashburn said the issues that Edwards will decide are very limited.

“The Court of Criminal Appeals will decide the ultimate issue,” Mashburn said. “All she has to decide is, one, were the victims in this case of Indian blood—which we all agree—and number two, is it within the historic boundaries of the Chickasaw Nation?”

The hearing proceeded as scheduled on Sept. 30.

“Given that she’s not going to be deciding the ultimate outcome of the case and only doing minimal fact-finding, we didn’t see a problem with it,” Mashburn said, “and she’s a historically good judge.”